Citation Nr: 1809637
Decision Date: 02/14/18 Archive Date: 02/27/18
DOCKET NO. 14-14 688 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUES
1. Entitlement to a restoration of a 60 percent evaluation for tinea pedis with onychomycosis and tinea versicolor, effective August 1, 2013.
2. Entitlement to an increased evaluation higher than 30 percent for status-post right shoulder dislocation with post-surgical changes and rotator cuff injury.
REPRESENTATION
Appellant represented by: Oklahoma Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Jonathan Z. Morris, Associate Counsel
INTRODUCTION
The Veteran had active military service from May 24, 1989 to December 30, 1995, and from June 24, 1996 to March 4, 1997.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Initially, a December 2012 rating decision continued the assigned 30 percent evaluation for the service-connected right shoulder disability. Subsequently, a May 2013 rating decision reduced the assigned evaluation for the Veteran's service-connected tinea pedis with onychomycosis and tinea versicolor, from 60 percent to 10 percent disabling, effective August 1, 2013.
In April 2017, the Veteran testified before the undersigned Veterans Law Judge at a live videoconference hearing. A transcript of the proceeding is of record.
The Board is only undertaking adjudication of the matter involving the propriety of the rating reduction for tinea pedis with onychomycosis and tinea versicolor, from 60 percent to 10 percent disabling. As will be explained, the Board is remanding the claim of entitlement to an increased evaluation for the right shoulder disability to the Agency of Original Jurisdiction (AOJ) for further development.
FINDINGS OF FACT
1. In a May 2013 rating decision, the RO reduced the assigned evaluation for the Veteran's service-connected tinea pedis with onychomycosis and tinea versicolor, from 60 percent to 10 percent disabling, effective August 1, 2013.
2. At the time of the May 2013 reduction, the evidence of record does not demonstrate a sustained improvement under the ordinary conditions of life.
CONCLUSION OF LAW
The criteria for restoration of a 60 percent evaluation for tinea pedis with onychomycosis and tinea versicolor, effective August 1, 2013, have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.105(e), 3.344(c) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.
II. Restoration of Disability Rating
A rating reduction is the result of a course of action taken by VA, and not a claim by the Veteran. The regulation governing rating reductions, 38 C.F.R. § 3.105(e), contains its own notice provisions and procedures. When the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted).
Pursuant to 38 C.F.R. § 3.105(e), when a rating reduction is considered and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction must be prepared and mailed to the Veteran's address of record. Id. This proposed rating should set forth all of the material facts and reasons for the proposed reduction. Id. Additionally, the Veteran must be given 60 days to present additional evidence showing that compensation payments should be continued at the present level. Id.
In this case, the proposed reduction of the assigned disability rating for the Veteran's service-connected tinea pedis with onychomycosis and tinea versicolor resulted in a reduction of compensation payments being made. Consequently, the RO issued a rating reduction proposal in December 2012, which set forth the material facts and reasons for the proposed reduction. The Veteran was given 60 days to respond and present additional evidence. In May 2013, the RO issued a rating decision effectuating the reduction. Thus, the notice requirements for the reduction of the assigned disability rating were satisfied. See 38 C.F.R. § 3.105(e).
Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. These ratings are intended to compensate, as far as can be practicably determined, the average impairment in earning capacity resulting from such diseases and injuries incurred or aggravated during military service and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.
At the time, the Veteran's tinea pedis with onychomycosis and tinea versicolor was rated under the criteria set forth at 38 C.F.R. § 4.118, Diagnostic Code 7806.
Diagnostic Code 7806, used to evaluate dermatitis or eczema, provides that where there is less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period a noncompensable evaluation is warranted. Id.
When at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or immunosuppressive drugs required for a total duration of less than six-weeks during the past 12-month period, a 10 percent evaluation is assigned. Id.
Where there is 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, a 30 percent evaluation is assigned. Id.
Where there is more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12 month period, a 60 percent evaluation is assigned. Id.
In this case, the Veteran was in receipt of a 60 percent evaluation for her tinea pedis with onychomycosis and tinea versicolor, effective October 18, 2011. In May 2013, the RO reduced the assigned evaluation for her service-connected disability from 60 percent down to 10 percent. This rating reduction was based solely on the February 2012 examination report showing the Veteran's need for constant or near-constant oral medication to control the condition. This oral medication was noted as not being either corticosteroids or other immunosuppressive drugs
Initially, the Board notes that because the 60 percent disability rating was in effect for a period less than five years, the Board's analysis will be conducted under 38 C.F.R. § 3.344(c). Pursuant to 38 C.F.R. § 3.344(c), a reexamination that shows improvement in a disability warrants a reduction in the disability evaluation.
However, notwithstanding the requisite procedural steps being followed in this case, the Board notes that a rating reduction is not proper unless the veteran's disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000).
Regulations "impose a clear requirement that VA rating reductions . . . be based upon a review of the entire history of the Veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. A rating reduction is proper if the evidence reflects an actual change in the disability. The examination reports reflecting such change must be based upon thorough examinations. Brown, 5 Vet. App. at 42. The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must also be determined that any such improvement also reflects an improvement in the veteran's ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown, supra.
Upon thorough review of the record, the Board concludes that the reduction in the evaluation of the Veteran's service-connected tinea pedis with onychomycosis and tinea versicolor, based upon the available medical evidence of record was not warranted. The Veteran was initially assigned an increased 60 percent rating, effective October 18, 2011, on the basis of a February 2012 VA compensation examination. Subsequently, the RO reduced the assigned evaluation from 60 percent 10 percent on the basis of a later review of the February 2012 examination report. In fact, not only did the RO use the same examination that previously served as the basis to assign a 60 percent rating, but the RO did not obtain or review any other relevant medical records; which, clearly, is not enough to show actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust, 13 Vet. App. at 349.
Also, the Board notes that the RO incorrectly determined that the constant or near-constant oral medication to control the Veteran's service-connected condition did not support the 60 percent evaluation due to the medication not being either corticosteroids or other immunosuppressive drugs. See VBA Adj. Manual M21-1, III.iv.4.J.3.f (recognizing that systemic therapy encompasses oral medications).
Essentially, by focusing on what the evidence must show to warrant a higher rating, rather than discussing the overall improvement of the Veteran's service-connected disability, the May 2013 rating decision shows that the RO analyzed the issue of the reduction of the 60 percent evaluation just as it would a claim for an increased disability rating. Whenever, the RO impermissibly places the burden of proof on the Veteran to show his or her disability has worsened, rather than the RO showing that the disability has improved, the RO has not complied with the provisions of 38 C.F.R. § 3.344. The Board emphasizes that failure to properly apply these provisions makes a rating decision void ab initio. Such an omission is error and not in accordance with the law. Greyzck v. West, 12 Vet. App. 288 (1999); Hayes v. Brown, 9 Vet. App. 67 (1996); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).
Accordingly, the rating reduction for the Veteran's service-connected tinea pedis with onychomycosis and tinea versicolor, from 60 percent down to 10 percent, effective August 1, 2013, was not proper; and the 60 percent evaluation is restored.
ORDER
Entitlement to a restoration of a 60 percent evaluation for tinea pedis with onychomycosis and tinea versicolor, effective August 1, 2013, is granted.
REMAND
The Board must reconsider this case in light of Correia v. McDonald, 28 Vet. App. 158 (2016). Correia provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2015) requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.
The Board has reviewed the findings from the Veteran's most recent December 2013 VA examination for her right shoulder disability, and sees that these findings do not meet the specifications of Correia. Specifically, the examiner did not address whether the range-of-motion testing was conducted on active or passive motion and weight-bearing or nonweight-bearing. Given this, the Board is not satisfied that the examination findings are adequate for a contemporaneous rating. Therefore, an additional examination is necessary under 38 C.F.R. § 3.159(c)(4). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA undertakes the effort to provide an examination, even if not statutorily obligated to, it must provide an adequate one, else, notify the claimant why one cannot or will not be provided).
Additionally, while on remand, the AOJ should obtain the records of all relevant treatment the Veteran has received (the records of which have not already been obtained, so they, too, may be considered).
Accordingly, the case is REMANDED for the following action:
1. Contact the appropriate VA Medical Center(s) and obtain all outstanding treatment records if relevant to these claims. Also ask the Veteran to provide, or authorize VA to obtain, all relevant private medical records that have not yet been obtained. All efforts to obtain these records must be documented in the claim file and the Veteran properly notified if unable to obtain identified records. 38 C.F.R. § 3.159(c) and (e).
2. After all available records have been associated with the claims file, schedule the Veteran for an appropriate VA compensation examination to reassess the current severity of her service-connected right shoulder disability. Her claims file, including a copy of this remand, must be made available to the examiner for review of the history of this disability. Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must:
(a) Conduct any indicated diagnostic tests that are deemed necessary for an accurate assessment, including an analysis of any additional disability due to pain, weakness, premature or excess fatigability, or incoordination, such as during prolonged, repeated use or during "flare ups". The examiner should report (in degrees) the point at which pain is objectively recorded. These determinations, if feasible, should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups or prolonged use.
This information must be derived from testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The examination report must confirm that all such testing has been done and reflect the results of the testing. If the examiner is unable to perform the required testing or concludes the testing is unnecessary, he or she must clearly explain why that is so.
(b) As well, comment on what limitations might be expected in the workplace (based on the Veteran's employment history and training) with respect to her service-connected right shoulder disability.
The examiner must provide complete rationale for all opinions given, preferably citing to clinical findings or other medical authority. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words merely saying he or she cannot respond will not suffice.
3. Ensure the requested examination report is responsive to the applicable rating criteria. If it is not, obtain all necessary additional information. Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 4.2.
4. After completing the above and any other development deemed necessary, readjudicate this claim in light of all additional evidence. If the claim is denied, or is not granted to the Veteran's satisfaction, send the Veteran and her representative another SSOC and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014).
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M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs